Guantánamo Detainees in U.S. Federal Courts

As the Obama Administration grapples with resolving the detention of prisoners at Guantánamo, one option which must be preserved is the criminal prosecution of detainees in U.S. federal courts.
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The American criminal justice system has demonstrated a remarkable ability to meet the legal challenges posed by "the war on terror." Based on my own experience in prosecuting terrorism cases and the growing historical record, federal courts consistently have resolved complex constitutional and procedural issues that terrorism cases often present, including the use and protection of sensitive intelligence information and the admissibility of evidence obtained overseas. As the Obama Administration continues to grapple with resolving the detention of prisoners at the U.S. Naval Station in Guantánamo Bay, Cuba, one option which therefore must be preserved is the criminal prosecution of detainees in U.S. federal courts.

Yet Congress unwisely has limited President Obama's flexibility to pursue the criminal option in Guantánamo cases by placing restrictions through September 2009 on funds for detainees to
be brought to the United States to face trial. Worse, the House has now passed legislation that would extend funding prohibitions indefinitely unless the President submits a report to Congress on each detainee proposed for transfer, including a risk assessment and a plan for risk mitigation. Even then, no funds may be used for a detainee transfer to the United States until four months after the President's report to Congress.

These legislative restrictions on the President's discretion are based on the belief that terrorists cannot be detained safely on U.S. soil. But that belief is grossly mistaken. Both before and after the attacks of September 11, 2001, a rogues' gallery of dangerous terrorists successfully have been detained for long periods in the United States in localities across the country. For example, Egyptian radical Sheikh Omar Abdel Rahman was held for approximately four years at the Federal Medical Center in Rochester, Minnesota following his conviction in 1995 for plotting to bomb the Lincoln Tunnel and other New York City landmarks. Ahmed Ressam, an Algerian who had trained at an al-Qaeda camp in Afghanistan, was long incarcerated at a federal detention center near Seattle after his arrest for planning to bomb Los Angeles International Airport on New York's eve in 1999. Ramzi Yousef, who masterminded the 1993 bombing of the World Trade Center, was detained for approximately three years at the Metropolitan Detention Center in New York.

After September 11, al-Qaeda operative Richard Reid was held at a county correctional facility in Plymouth, Massachusetts, after his arrest for attempting to blow up a passenger airliner in mid-air. The municipal detention center in Alexandria, Virginia -- located only a few miles from the White House and U.S. Capitol -- has housed both Zacarias Moussaoui, who trained to fly commercial aircraft in connection with the September 11 plot, and Ahmed Omar Abu Ali, an American citizen who joined an al-Qaeda cell in Saudi Arabia and conspired to commit various terrorist attacks in the United States, including the assassination of President George W. Bush.

None of these facilities was ever attacked while a defendant was incarcerated there on terrorism-related charges, and no such detainee has ever escaped. Moreover, most of these terrorists are now safely serving their sentences at the impregnable "Supermax" facility operated by the federal Bureau of Prisons in Florence, Colorado.

Congress irresponsibly has ignored this history of experience. It has also ignored the Department of Justice's regulatory authority to tighten security for individuals who either are being detained pending trial on terrorism-related charges or have been convicted of such an offense. Under federal regulations, the Attorney General has broad discretion to impose "Special Administrative Measures" (SAMs) that severely restrict a detainee's ability to engage in conduct while incarcerated that could present a national security risk.

The restrictions the government can impose under its SAMs authority include solitary confinement; severe limitations on telephone communications, correspondence, and visits by family and friends; and a prohibition on contact with the news media. The government even can prohibit participation in group prayer with other Muslim inmates. In a case where "reasonable suspicion" exists to believe that a particular inmate may use communications with attorneys to facilitate acts of terrorism, the government also can monitor and review
communications that otherwise would be confidential under the attorney-client privilege. Inmates may seek judicial review of SAMs restrictions if they have first exhausted administrative appeals within the Bureau of Prisons, but the courts generally have been deferential to the government's security concerns.

Not every case involving a Guantánamo detainee is appropriate for criminal prosecution. Where there is sufficient admissible evidence, however, these cases should be brought in federal courts. Prosecutions in the criminal justice system confer greater credibility on the government's handling of these cases. Domestically, that credibility helps to foster political consensus about the legitimacy of the government's approach to counterterrorism; overseas, it helps to promote critical cooperation by foreign intelligence and law enforcement authorities. In addition, by their public exposition of evidence through the crucible of the adversarial system, criminal trials play an important role in educating the American people -- and the world -- about the true nature of the continued threat we face.

Congress should stop hiding behind the false pretense of homeland security and restore the Obama Administration's flexibility to transfer Guantánamo detainees to the United States for criminal prosecution.

David Laufman, a partner in the Washington, D.C., office of Kelley Drye & Warren LLP, served as an Assistant United States Attorney in the Eastern District of Virginia from 2003-2007 and as Chief of Staff to the Deputy Attorney General from 2001-2003.

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